Businessman Yusupha Saidy Charged, Granted Bail After being held for 8 months without trial

By Mamadou DemA businessman in the person of Yusupha Saidy was yesterday, 12thJanuary, 2016 arraigned before Magistrate Abdoulie Fatty of the lowercourt in Banjul charged with two criminal counts of ‘Conspiracy tocommit a felony’ and ‘Obtaining money by false pretence’ contrary tothe laws of The Gambia.

However, Mr. Saidy has denied any wrong doing and was admitted to bailwith these conditions that he provides two Gambian sureties who shallenter into recognizance in the sum of D1, 000,000 and that thesureties shall depose to an Affidavit of means and one of them must bethe owner of a landed property within the Gambia, situated not beyondBrikama in the W.C.R and not less than a value of D1, 000,000 whichmust be covered by a valid and recognized title deed. The suretyshall deposit with the Registrar of the Court the original andrecognised title deed in respect of the said property, together with avaluation report on the property on a date not earlier than the dateof this Order; and the police shall retain the Gambian national I.Dcard and Passport of the accused pending the outcome of the case.The Applicant to report to the Police Headquarters every Mondaybetween 9:00a.m and 1p.m.

The particulars of offence for count one states that theaforementioned person “sometimes in the month of April, 2015 in thecity of Banjul and diverse places in the Republic of The Gambia, withintent to defraud jointly conspired with one Mr. Watara (Ouatara), anIvoirian, Mr. Basir (Bashir), a South African, and Mr. Seedy Ahmed, aSenegalese, all said to be at large, and obtained the sum of€180,000.00 (one hundred and eighty thousand Euros) for thetransportation and customs clearance from one Omar Faruk Deniz,thereby committed an offence.”

Count two alleges that the accused with “Mr. Watara(Ouatara), Mr. Basir (Bashir) and Mr. Seedy Ahmed, all at large,sometimes in the month of April, 2015 in the city of Banjul anddiverse places in The Gambia, with intent to defraud jointly obtainedthe sum of €180,000.00 (one hundred and eighty thousand Euros) forthe transportation and custom clearance of 100 metal boxes containing15 million American dollars, 10 tons of gold, some diamonds andportraits from one Omar Faruk Deniz with the pretext of clearing andtransporting goods for him knowing same to be false, thereby committedan offence.”

Applying for bail, Lawyer Loubna Farage, counsel for the accused,submitted that her client has been in detention since the 28th of May,2015, which is eight months now, and was never charged. She said inNovember last year, when the accused was held in detention for fivemonths, the applicant filed a ‘habeas corpus’ and a ruling wasdelivered by the high court. She said despite the fact that the statewas given the opportunity to respond, nothing was filed opposing theirapplication for the accused person to be produced by the authorities.

At this juncture, Ms. Farage read out the ruling to the court tostrengthen her application for bail. “All the travelling documents ofthe accused are submitted to the National Intelligence Agency (NIA)from the onset,” she disclosed.

Lawyer Farage argued that the Constitution of The Gambia hasguaranteed each and every person freedom of liberty, adding that threepeople are said to be at large and that there is no evidence that theaccused will interfere with prosecution witnesses.

“The Constitution on its own is enough to guarantee any court in thisland. However, I referred this court to the cases of Abdoulie Tambadouand William John Joof against the Inspector General of Police (IGP),Where Justice Mahoney held that “No continuation of investigations, nopossibility of interfering with witnesses, especially when thewitnesses are foreign nationals when no evidence is put before thecourt to support such assertions is enough to deny someone bail, theburden is on the respondent i.e. the state to show why bail should berefused,” she submitted.The defence further submitted that the second count is a misdemeanorand there is no reason before this court after eight months denyingsomeone liberty, access to family, making a living, as well as denyinghim sanity. She argued that the accused should not be further detainedfor even an hour.

At this point, Ms. Farage surrendered the ruling of the high courttogether with the cases cited earlier to be part of the court records.“We urged the court to uphold the Constitution of The Gambia and grantthe accused bail,” she concluded.

Police Prosecutor Inspector Almamy Manga submitted that theprosecution was strongly objecting for Mr. Saidy to be released on bailon the grounds that if he is granted bail, he will interfere with theongoing investigations because some of the alleged suspects are atlarge and that efforts are being made to track them down and bringthem to face justice.

According to Manga, the investigators are working tirelessly to trackdown the other suspects. He said granting the accused bail willtantamount to giving him the opportunity to continue to network withthe other suspects.

The prosecuting officer further submitted that the accused is widelyknown in the business arena and that there is the possibility for himto interfere with witnesses within and outside the jurisdiction.

“We are aware that the granting or refusal of bail is at thediscretion of the court and it lies on the bosom of the court. Weurged the court to exercise that discretion in favour of theprosecution and remand the accused in prison custody,” he submitted.

Replying to the prosecution’s submission, defence counsel Faragesubmitted that with regards to the cardinal principle to convict, thecourt is reminded that it is a bail application and the Constitutionfurther provides that anybody charged with any offence should be givenample time and opportunity to prepare for his or her case.

Magistrate Fatty ruled that the habeas corpus dated 15th October aswell as the ruling of the high court are admitted by the court to bepart of the records.

Delivering the ruling in a congested court room, the trial magistratesaid “I have considered the submissions of the Applicant and theRespondent. It is my legal and moral obligation to act judicially andjudiciously and that is what I intend to do here. It is the discretionof this honourable court to grant or deny bail. Lest I go further, itis important to state here that the two charges the accused is facingare bailable. However, the court should also consider other factorsand the circumstances of this case as a whole in coming to aconclusion that is fair and just,” said the trial magistrate.

He cited Section 19(1) of the Constitution of The Gambia 1997 which,he said, expressly provides that no one shall be deprived of his orher liberty except on such grounds and in accordance with suchprocedures as are established by law.

He added that Section 99 (1) of the Criminal Procedure Code of theLaws of The Gambia, provides that any person, other than a personaccused of an offence punishable with death or life imprisonmentbrought before any Court on any process and is prepared to give bail,such person may in the discretion of the Court be released upon hisentering into a recognizance conditioned for his appearance beforesuch Court at the time and place mentioned in the recognizance.

On the issue of interfering with witnesses and the investigationsbeing ongoing, the trial magistrate said the Respondent has notoffered any evidence of tangible substance to convince the court torefuse the Applicant bail. He said “Firstly, principal suspects inthis case are all foreign citizens and at large. Secondly, in relationto the investigations, I hasten to point to the observation made byJustice Mbai in Abdoulie Tambedou v Inspector General of Police, suprawhen he asked “What if the investigation takes another 6 weeks or 6months?”

He added “Does the Applicant have to be in custody all this time atthe instance of the State? Counsel for the accused averred that thelatter has been in custody since May 2015. This fact was neitheradmitted nor denied by the Respondent. It is well established thatwhere facts or evidence remain unchallenged and uncontroverted, thecourt has no choice than to regard it as establishing the factsalleged therein.”

Magistrate Fatty said “The Respondent’s grounds for refusing bail arenot well founded. There is insufficient material before the Court tosubstantiate the grounds.”

The trial magistrate cited Section 24(3)(c) of the Constitution which, hesaid, provides for all accused persons to be given adequate time andfacilities to prepare for their defence. “Thus, the Applicant has aconstitutional entitlement and in this instance, denying him thatbenefit may be a denial of a basic constitutional right. Granting theaccused bail does not prohibit or limit the powers of the police tocontinue their investigations. Consequently the accused was admittedto bail with the conditions stated above. The case is adjourned to the27th of this month for hearing,” he concluded.